Opinion
March Term, 1900.
Richard Cohn, for the appellant.
Robert H. Wilson, for the respondent.
The proceeding was instituted under the statute to lease, mortgage or sell the real property of the decedent for the payment of her debts. As to parcel No. 1, described in the petition, the averment was that it was not incumbered by any lien or liens except the judgment upon which the proceeding is based. In fact the heirs of the decedent had mortgaged this property to Carl and Margaretha Drager, and such mortgage was a lien thereon at the time the proceeding was instituted. Upon discovery of these facts the petitioner moved before the surrogate to amend the petition by setting out said mortgage as a lien, and further asked that a supplemental citation issue, bringing in the mortgagees as parties to the proceeding. The amendment having been granted, Helene Bachmann, a purchaser of the premises, appeals.
It is the claim of the appellant that the petition is insufficient in law to confer jurisdiction upon the surrogate to entertain the proceeding; that no authority exists to grant the amendment, and, if it did, the Statute of Limitations having run, the mortgagees' rights cannot be cut off. That the petition in the present case set out all of the facts showing the indebtedness of the decedent to the petitioner as required by the statute is not disputed. This was sufficient to confer upon the surrogate jurisdiction to act. ( Matter of German Bank, 39 Hun, 181; Matter of Bingham, 32 N.Y. St. Repr. 782.) The surrogate, having jurisdiction, had power to grant the amendment. The Code of Civil Procedure contemplates the bringing in of parties, after inquiry, by the surrogate if it then appear that such person or persons claim an interest in the property affected by the proceeding, either as heir or devisee, or as one who claims under or through them. Such person or persons, although not named in the citation, may voluntarily intervene in the proceeding and prove his or their debt or lien. (§§ 2754, 2755.) Authority abundantly supports this conclusion, and the fact that the Statute of Limitations has run against instituting the proceeding is no bar to granting such an amendment. ( Matter of Bingham, 127 N.Y. 296.) Where jurisdiction of the particular proceeding exists the authority to amend exists, and such rule is applicable to special proceedings. ( People ex rel. R.R. Co. v. Assessors, 10 App. Div. 393.)
The order granting the amendment was proper; it should, therefore, be affirmed.
All concurred.
Interlocutory order of the Surrogate's Court of Kings county affirmed, with ten dollars costs and disbursements.